Monday round-up

Posted Mon, June 26th, 2017 7:09 am by Edith Roberts

This morning the court will release orders from its final scheduled conference of the term last Thursday, as well as opinions in any remaining cases in which it has reached a decision. Amy Howe highlights the six cases left from this term’s argument docket for this blog. At Constitution Daily, Lyle Denniston reports that the “fate of President Trump’s controversial executive order putting limits on immigration of foreign nationals” offers the “prospect of a headline-making finish.” Additional looks at the business pending before the court come from Steven Mazie at The Economist’s Espresso blog, Lawrence Hurley at Reuters, and Constitution Daily. Slate’s Breakfast Table forum features an array of comments on the end of the term.

Last Friday, in an extra session, the justices handed down decisions in three more cases. Mark Walsh provides a “view” from the courtroom for this blog. The first decision was in Perry v. Merit Systems Protection Board, in which the justices held that district court is the proper forum for a “mixed” case, involving both adverse action and discrimination, that is dismissed by the MSPB on jurisdictional grounds. Howard Wasserman has this blog’s opinion analysis. At his eponymous blog, Ross Runkel notes that “Justice Gorsuch filed a cogent and revealing dissent.”

In Murr v. Wisconsin, the court employed a multi-factor analysis to uphold a lower court’s ruling that the two contiguous lots at issue in the case should be considered as one parcel, and that no regulatory taking had occurred. Miriam Seifter analyzes the opinion for this blog. In The Wall Street Journal, Jess Bravin reports that the decision “fortified environmental land-use regulations against legal challenges, frustrating property-rights activists who hoped their test case would open a host of development restrictions to constitutional attack.” For the Milwaukee Journal Sentinel (via the USA Today Network), Bruce Vielmetti reports that “[t]he decision did not provide the clear guidance many in the development industry had hoped it would.” Additional coverage comes from Greg Stohr at Bloomberg, Andrew Chung at Reuters, Scott Bomboy at Constitution Daily, and Nina Totenberg at NPR. At the Cato Institute’s Cato at Liberty blog, Roger Pilon argues that “[p]roperty owners have long suffered under the Supreme Court’s erratic rulings,” a situation that “got worse [on Fri]day.” At PrawfsBlawg, Rick Hills maintains that “[c]ases like Murr merely ratify what we already really know: When it comes to property in land, the states are inevitably in charge, and it is there that we libertarians ought to direct our energies.”

The last decision on Friday was in Lee v. United States, in which the court held that a defendant had been prejudiced by his attorney’s erroneous advice that a guilty plea would not result in mandatory deportation. Amy Howe has this blog’s opinion analysis. Additional coverage comes from Robert Barnes in The Washington Post, Lawrence Hurley at Reuters, and Adam Liptak in The New York Times. At the ImmigrationProf Blog, Kevin Johnson observes that this decision “continues a trend in which the Court has shown a willingness to protect the rights of immigrants and to apply standard constitutional doctrines to protect the rights of immigrants, in this case the right to effective assistance of counsel.” Kent Scheidegger looks at the decision at Crime and Consequences. At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro weighs in on Murr and Lee.

At NPR, Nina Totenberg reports on the court’s decision last week in Maslenjak v. United States, in which the justices held that the government cannot denaturalize someone for making false statements that did not affect the decision to make her a citizen, observing that the court noted that a contrary ruling “would mean that a lie told in the naturalization process, even out of embarrassment, fear or a desire for privacy, would always provide a basis for rescinding citizenship.” Additional coverage comes from Adam Liptak in The New York Times. Matt Ford looks at the decision in The Atlantic, maintaining that “[h]ad the Court ruled the other way, it could have opened the doors for federal prosecutors to imperil the citizenship of tens of thousands of Americans for innocuous errors made decades earlier.” In a column for Bloomberg View, Noah Feldman argues that although the court’s decision “bucks the anti-immigration trend by making it harder than before to strip immigrants of their citizenship status,” it “further weakens the basic norm of truth-telling.”

At the Associated Press, Mark Sherman reports that the “Supreme Court has almost certainly decided what to do about President Donald Trump’s travel ban affecting citizens of six mostly Muslim countries,” and that the “court’s decision could come any time and is expected no later than late [this] week, after which the justices will scatter for speeches, teaching gigs and vacations.” At Take Care, Jim Oleske contends that in its briefing in the entry-ban litigation, the federal government failed to account for the fact that it has previously taken a position contrary to its current contention “that courts should not consider campaign statements and other unofficial statements when deciding if a government policy has a discriminatory purpose.”

At Empirical SCOTUS, Adam Feldman assesses the available data about Justice Neil Gorsuch’s approach to Supreme Court judging and looks at the early performances of Justices Antonin Scalia and Clarence Thomas, concluding that “we may see Justice Gorsuch strengthen the coalitions he has already participated in and continue to make narrow decisions based predominantly on his readings of the plain text of statutes.” At The Washington Post’s Volokh Conspiracy blog, Jonathan Adler asserts that Gorsuch’s “three opinions … show the Supreme Court’s newest justice to be a confident, committed textualist with a distinctive writing style — and a justice who is not afraid to challenge his new colleagues.”

Briefly:

At Legal Sports Report, Daniel Wallach explains why he thinks the court will agree to review a cert petition stemming from New Jersey’s attempt to legalize sports betting that asks “whether a federal statute … that prohibits a modification or ‘repeal’ of state law prohibitions on private conduct (i.e., sports betting) impermissibly commandeers the regulatory power of the States, in contravention of the Tenth Amendment of the US Constitution.”

The Daily Journal’s Weekly Appellate Report podcast features discussions of last week’s personal-jurisdiction decision and a concurrence by Justice Clarence Thomas in a recent decision limiting the ability of post-9/11 detainees to sue federal officials under the Constitution.

In The Atlantic, Matt Ford looks at this term’s death-penalty cases, concluding that “death-penalty opponents achieve[d] some notable victories even as the Court moved further away from abolishing capital punishment.”

In an op-ed in The Wall Street Journal, Daniel Henninger weighs in on Matal v. Tam, in which the justices held last week that a ban on the registration of disparaging trademarks violates the First Amendment, arguing that the decision “won’t stop the political coercion cops, who are still deploying intimidation and shaming tactics beyond the reach of the courts and Constitution.”

At Jost on Justice, Ken Jost argues that with its decision last week in Ziglar v. Abassi limiting the right to sue federal officials under the Constitution, “a bare 4-2 majority of the shorthanded court has given federal officials a national-security get-out-of-litigation-free card.”

For Capitol Media Services (via Pinal Central), Howard Fischer reports that a ruling in Hernandez v. Mesa today would affect another cross-border shooting case pending in the U.S. Court of Appeals for the 9th Circuit.

In The National Law Journal (subscription or registration required), Tony Mauro offers some Supreme Court-related beach reading, observing that with “all the dramatic recent twists and turns at the Supreme Court, fiction is getting closer and closer to real life.”

At The A.V. Club, Laura Browning reports that two Supreme Court justices have now diverged on the earth-shaking issue of whether to capitalize “internet.”

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Merits Case Pages and Archives

Major Cases

Department of Commerce v. New YorkThe secretary of the Department of Commerce did not violate the enumeration clause or the Census Act in deciding to reinstate a citizenship question on the 2020 census questionnaire, but the district court was warranted in remanding the case back to the agency where the evidence tells a story that does not match the secretary’s explanation for his decision.